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State v. Nicori (11/3/2017) ap-2573

State v. Nicori (11/3/2017) ap-2573

                                                                             NOTICE
  

             The text         of   this opinion can be corrected before the opinion is published in the                          

             Pacific Reporter             .   Readers are encouraged to bring typographical or other formal                             

             errors to the attention of the Clerk of the Appellate Courts:    



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                                                                  Fax:  (907) 264-0878  

                                                       E-mail:  corrections@ akcourts.us  



                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                   



STATE  OF  ALASKA,  

                                                                                                                                                       

                                                                                         Court of Appeals Nos. A-12866, A-12875,  

                                                                                                                            

                                                     Petitioner,                                                      & A-12886  

                                                                                                                                                           

                                                                                                  Trial Court Nos. 4BE-16-547 CR  

                                                                                                                                             

                                       v.                                                                      & 4BE-16-749 CR  



PETER  G.  NICORI  and                                                                                           O   P   I   N   I   O   N  

WINIFRED  OLICK,  



                                                     Respondents.                                  No. 2573 - November 3, 2017  

                                                                                                                                                      



                          Petition for Review from the Superior Court, Fourth Judicial  

                                                                                                                                  

                          District, Bethel, Dwayne W. McConnell, Judge.  

                                                                                                        



                          Appearances:   Elizabeth T. Burke, Assistant Attorney General,  

                                                                                                                                 

                          Office of Criminal Appeals, Anchorage, and Jahna Lindemuth,  

                                                                                                                            

                          Attorney General, Juneau, for the Petitioner. Laurence Blakely,  

                                                                                                                                  

                          Assistant            Public          Defender,             and        Quinlan           Steiner,          Public  

                                                                                                                                   

                          Defender, Anchorage, for Respondent Nicori.  No appearance  

                                                                                                                           

                          for Respondent Olick.  

                                                                      



                          Before:  Mannheimer, Chief Judge, Allard, Judge, and Suddock,  

                                                                                                                                

                           Superior Court Judge.*  

                                                                       



                                       

                          Judge MANNHEIMER.  



       *     Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  



Constitution and Administrative Rule 24(d).                            


----------------------- Page 2-----------------------

                                                                                                                                

                     The State of Alaska has petitioned this Court to review and reverse two  



                                                                                                                   

decisions  of  the  superior  court:                 (1)  the  court's  decision  to  require  the  prosecuting  



                                                                                                                           

attorney to attend and testify at an evidentiary hearing to investigate whether the current  



                                                                                                                            

criminal charges against Peter G.  Nicori and Winifred Olick  are the result of actual  



                                                                                                                              

prosecutorial vindictiveness,  and  (2)  the  court's  refusal to  allow  the  State  to  seek  



                                                  

reconsideration of this decision.  



                                                                                                                                   

                     Respondent Peter Nicori has filed a cross-petition (File No. A-12886) in  



                                                                                                                                  

which he asserts that he has already presented a prima facie  case of the appearance of  



                                                                                                                                 

prosecutorial vindictiveness, and that the superior court should therefore be placing the  



                                                                                                                   

burden on the State to affirmatively disprove this charge of vindictiveness.  



                                                                                                                          

                     For the reasons explained in this opinion, we GRANT the State's petition  



                                                                                                                           

on the second  question presented by the State.  We hold that the superior court should  



                                                                                                                                

have  allowed  the  State  to  seek  reconsideration  of  the  court's  decision  to  hold  the  



                                                                                             

evidentiary hearing and to require the prosecutor to testify.  



                                                                                                                                  

                     Because we are directing the superior court to allow the State to pursue its  



                                                                                                                           

motion for reconsideration, we need not reach the first question presented in the State's  



                                                                                                                              

petition - because, now that a motion for reconsideration is pending, the superior court  



                                                                                                                                  

has not yet issued a final order on the question of whether to require the prosecutor to  



                                                    

testify at the evidentiary hearing.  



                                                                                                                            

                     With regard to the question presented in Nicori's cross-petition, the cross- 



                                 

petition is DENIED.  



                                                           

           The procedural history of this litigation  



                                                                                                                                

                     The controversy in this case arose when the State re-indicted Nicori and  



                                                                                                                                 

Olick on more serious charges the day after  the  two defendants filed a request for  



                                                               - 2 -                                                          2573
  


----------------------- Page 3-----------------------

                                                                                                                                 

 discovery.        The defendants then filed a motion  asserting that the timing of the re- 



                                                                                                        

 indictment created the appearance of prosecutorial vindictiveness.  



                                                                                                                             

                     The superior court initially found that the defendants had set forth a prima  



                                                                                                                     

facie  case of vindictive prosecution, and the court therefore scheduled an evidentiary  



                                                                                                                      

 hearing to give the State an opportunity to affirmatively rebut this presumed vindictive- 



          

 ness.  



                                                                                                                                

                     After the defense subpoenaed the prosecuting attorney to testify at this  



                                                                                                                             

 hearing,  the State  asked the superior court to reconsider its decision,  and the court  



                                                                                                                         

 granted the State's request.  On reconsideration, the court reversed itself and declared  



                                                                                                                           

 that the facts did not give rise to the appearance of prosecutorial vindictiveness.  



                                                                                                                              

                     But the court then ruled (apparently sua sponte) that the defendants were  



                                                                                                                                 

 still entitled to subpoena the prosecutor to testify at the evidentiary hearing, so that the  



                                                                                                                                 

 defendants could interrogate the prosecutor regarding whether the re-indictment was the  



                                                                                                                          

 product of actual vindictiveness - a claim that the defendants had not raised.  



                                                                                                                                       

                     After receiving the superior court's decision on reconsideration, the State  



                                                                                                                                  

 filed a second motion for reconsideration,  asking the superior court to reconsider its  



                                                                                                                         

 latest decision.  But rather than reaching the merits of the State's arguments, the superior  



                                                                                                         

 court ruled that the State was barred from filing another request for reconsideration.  



                                                                                                                 

           Why we direct the superior court to let the State pursue its second motion  

                 

          for reconsideration  



                                                                                                                                    

                     There is no Alaska case that directly addresses the question of whether a  



                                                                                                                            

 party can ask a court to reconsider a decision or order issued in response to an earlier  



                                                                

 request for rehearing or reconsideration.  



                                                               - 3 -                                                           2573
  


----------------------- Page 4-----------------------

                                                                 But   though   there   is   no   published   Alaska   decision   resolving this                                                                                                                                                                                                                                               point,  



 many other states have ruled that a litigant is allowed - indeed, is often                                                                                                                                                                                                                                                                                         required -   



 to   file   a   second   petition   for   rehearing when                                                                                                                                                                     the   litigant   believes   that   a   decision   on  



                                                                                                  1  

 rehearing is flawed.                                                                                                                                                                                                                                                                                                                                                                                    

                                                                                                            Based on this case law,  and  based on the policy of giving trial  



                                                                                                                                                                                                                                                                                                                                                                                 

 courts a full opportunity to consider and correct errors before any appeal, we conclude  



                                                                                                                                                                                                                                                                                                                                                                                                                       

 that parties have the right to seek rehearing or reconsideration of a decision issued by a  



                                                                                                                                                                                                                                                                                                                                                                                            

 court on rehearing or reconsideration,  if the second request for rehearing  or  recon- 



                 1               See BrickellPlace CondominiumAss'n v. American Design and Development Corp.                                                                                                                                                                                                                                                                                                                ,  



 470 So.2d 74, 75 n. 1 (Fla. App. 1985) (declaring that if the litigant believed the court's first                                                                                                                                                                                                                                                                                                        

 decision on rehearing was flawed, the litigant "could have sought rehearing of our decision                                                                                                                                                                                                                                                                                           

 on rehearing");                                                     Consumers' Company v.PublicUtilities                                                                                                                                                    Comm'n,236 P. 732, 732-33 (Idaho                                                                                                    

  1925);  Moncla v. City of Lafayette                                                                                                                           , 241 So.2d 532 (La. 1970) (holding that the litigant was                                                                                                                                                                                   

 foreclosed because he failed to seek rehearing of the lower court's decision on rehearing);                                                                                                                                                                                                                                                                                

 Succession of Moody                                                                               , 149 So.2d 719, 723 (La. App. 1962) (entertaining a petition to rehear                                                                                                                                                                                                                      

 a decision on rehearing);                                                                                         Dziama v. City of Portsmouth                                                                                                                   , 669 A.2d 217, 219 (N.H. 1995);                                                                                            

 Carter v. Industrial Comm'n                                                                                                               ,   290 P. 776, 784 (Utah 1930) ("[W]hen [the commission]                                                                                                                                                             

 granted the first rehearing [and] set aside and vacated its [initial] order or judgment ... , the                                                                                                                                                                                                                                                                                                         

 [ensuing order on] rehearing ... in effect ... became a new ... order or judgment superseding                                                                                                                                                                                                                                                                         

 the former, which gave the defeated or aggrieved party the same right to move against it as                                                                                                                                                                                                                                                                                                                       

 he had to move against the displaced former order or judgment.");                                                                                                                                                                                                                                           Denmark v. Liberty Life                                                                       

Assurance Co.                                                      , 566 F.3d 1 (1st Cir. 2009);                                                                                               United States                                                   v.Garcia-Lagunas                                                                       , 645 Fed. Appx.                             

 271 (4th Cir. 2016).                                                                          



                                 See   also   Brown   v.   Industrial   Comm'n,   447   P.2d   276,   276   (Ariz.   App.   1968)  

 (reviewing, without comment, the commission's                                                                                                                                                                                     second   decision on rehearing -                                                                                                                                i.e.,  a  

 decision   rendered   on   a   petition   for   rehearing   seeking   review   of   its   first   decision   on  

 rehearing);  Goodrich v.                                                                                  Industrial AccidentComm'n                                                                                                         ,140 P.2d405,409 (Cal. 1943) (holding                                                                                                      

 that the commission had the authority to entertain a second petition for rehearing when its                                                                                                                                                                                                                                                                                                                     

 decision on rehearing rested on new evidence or new grounds).                                                                                                                                                                                                                                



                                But see Weinhagen v. Hayes                                                                                                          , 187 N.W. 756, 756 (Wis. 1921) (holding that a litigant                                                                                                                                                              

 is not allowed to seek rehearing of a decision on rehearing).                                                                                                                                                                                                                  



                                                                                                                                                                                                    - 4 -                                                                                                                                                                                                 2573
  


----------------------- Page 5-----------------------

                                                                                                                        

sideration is addressed to problems that are newly arisen because of the court's decision  



                                                   

on rehearing or reconsideration.  



                                                                                                              

                    Here, the issues addressed in the State's second motion for reconsideration  



                                                                                                                                     

are newly arisen because of the superior court's ruling on the State's first motion.  Thus,  



                                                                                                                              

the superior court committed procedural error when it refused to allow the State to seek  



                                              

reconsideration of that ruling.  



                                                                                                                                

                    We  express no opinion on the merits of the State's second motion for  



                                                                                                                        

reconsideration.  We hold only that the State is entitled to pursue that motion.  



                                                                                     

                    We do not retain jurisdiction of this case.  



                                                              - 5 -                                                           2573
  

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